A trap for the unwary: Emails

In our modern lives, emails and electronically stored information are ubiquitous. Few businesses could survive without relying on electronic communication, both internally and externally. In most of my cases now, emails comprise nearly all of the evidence that the government uses. In fact, when I started my practice of law years ago, a big case might involve 15 or 20 boxes of documents, total. Now, nearly all of our cases involve hundreds of thousands, if not millions of emails. Most of my case preparation is focused on interpreting what people meant in email communications.

It goes without saying that government regulators and prosecutors love emails. More often than not, corporate employees spew speculative and stream of consciousness thoughts in emails. Typically, this form of communication is not well thought out and contains highly problematic banter. I’ve seen prosecutors use emails to shape witness testimony and convince corporate employees to plead guilty, even when they otherwise would have legitimate defenses. At trial, email evidence is twisted in a way to support the government’s theory of the case, even if it contradicts witness testimony. Despite the obvious problems with email, companies continue to turn out millions of electronic communications each day, without much thought to their possible liability exposure.

A big part of the problem is that most people believe that emails are private. Obviously, they are not. Even deleted emails have some sort of life after death that can be captured by government agents using forensic tools. In this day and age, no electronic message should be considered private or beyond the reach of government agencies.

How does this all affect the C-Suite members? Well, the C-Suite tends to be more of a recipient of long-winded emails rather than the sender. I have seen this time and time again, where staff or middle managers seek to communicate with emails rather than through face-to-face meetings. Many times, C-Suite members invite this sort of communication as a means of more efficient communication. But here’s the danger: often, these emails contain speculative comments. In the rush of time, there may be no appropriate clarifying response, which may suggest the acceptance of a lower-level employee’s misunderstanding of a factual situation.

In other words, if a C-Suite executive is copied on any email, it is assumed that she has read it, absorbed it, and understood its content. This may be far from the truth. Indeed, most C-Suite managers are copied on dozens of daily emails that typically merit no response. Government regulators and prosecutors never accept this proposition, but rather take the stance that C-Suite executives have acquiesced to any email they are copied on.

So what are the pragmatic solutions? First, keep email communications to a minimum and insist that subordinates resist the inclination to write long-winded and speculative emails. Second, treat all emails as a permanent corporate record, which must be viewed as if they will appear on the front page of some newspaper the next day. That means any inappropriate or factually inaccurate content must be corrected immediately. It is not enough to simply fail to respond. Third, review all emails thoroughly, whether or not you are the primary recipient. Simply being copied on an email makes you a party to the content of the communication. I know this sounds very paranoid, but in every recent trial I’ve been involved in, the prosecutor has prominently displayed emails to the jury in an effort to distort the truth. Finally, use emails in an effective way to create a paper trail of credible adherence to your company’s compliance goals.